development of ip system and jurisprudential justification of iprs.pptx

8/19/2019 Development of IP System and Jurisprudential Justification of IPRs.pptx

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Development of IPR Systemand Jurisprudential Justication of IPRs

Amol Sapatnekar


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There was realization for necessary international as well asnational protection of these rights and properties as early as17th Century. Therefore various international conventions,treaties and agreements were signed (e.g. Paris Convention onProtection of Industrial Property, 1! and "erne Conventionfor the Protection of #iterary and $rtistic wor%s,1& '

$round the middle of the last century (1))', when the *econd+orld +ar was coming to an end and ermany was losing,some economists held a conference in "riton +oods-ampshire, *$ to restore the economic order.

They thought the world would /e a /etter place if there wereinternational /odies0

◦ to solve monetary2currency pro/lem3

◦ to reconstruct and develop the nations3 and

◦ to harmonise tariff and international trade.

The Development of Systems ofIPR


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The first and the second were esta/lished and areloosely %nown as the International 4onetary 5und (I45'and the +orld "an%. The third one, to /e %nown as, theInternational Trade 6rganisation (IT6' never too% off.

The * Congress did not approve it and without itssupport it was not possi/le to esta/lish it. "ut all wasnot lost.

epresentatives of 8& countries again met in -avana(1)7' to formulate principles to /e followed /y nations

to improve international trade.


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This formed the /asis for signing up a eneral$greement on Tariff and Trade ($TT' in eneva /y theend of the same year.

The contracting nations also resolved to form a "oard ofTrade with a *ecretary eneral to loo% after its furtherrevision and implementation.

Thus ended the first round of $TT. #egally $TT wasnot a formal 6rganisation, /ut an agreement enteredinto /y the contracting nations.


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"roadly $TT dealt with reducing tariffs and improvingtrade among the nations, though there wasn’t anydispute settlement mechanism.

5ew more rounds were held and it was the th round,started in 1&, with a meeting in ruguay, that led to

the creation of the +orld Trade 6rganisation (+T6'.

It was in this round that the * sought inclusion of afew more items, amongst others0 trade related toIntellectual Property ights, trade related to investmentmeasures

, trade related to services, agricultural

su/sidy, dispute settlement mechanism.


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The th round continued for seven and half years and itoften appeared that an agreement would not /ereached.

"ut ultimately a draft was prepared under *ecretaryeneral $rthur 9un%el that came to /e %nown as the

9un%el 9raft. It was de/ated and most of it wasapproved of in 9ecem/er 1!.

It was formally signed on $pril 18, 1) /y 1:8countries at a meeting held in 4arra%esh (4orocco'inter alia, it meant esta/lishment of the +T6 from

;anuary 1, 18, the Trade Policy eview "ody, and the9ispute *ettlement "ody and accepting the agreementsforming the /asis for international trade.


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4ost of the +T6 agreement apply to all +T6 mem/ersi.e. a mem/er has to accept all of them3 he cannotchoose.

These agreements provide certain minimum standardsto /e o/served /y mem/ers and %eep trade policies ofthe mem/ers within agreed limits.

The important agreements within +T6 system are0

◦ 1. eneral $greement on Tariffs and Trade ($TT'

◦ :. eneral $greement on Trade in *ervices ($T*'

◦ !. Tradeelated $spects of Intellectual Property (TIP*'


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TIP* provides for the following %inds of IntellectualProperty ights0

Copyright and elated ights,

Trademar%s, eographical Indications,

Industrial 9esigns,

Patents,

#ayout9esigns (Topographies' of Integrated Circuits,

Protection of ndisclosed Information (Trade *ecret'.


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TIP* provide a minimum standard to /e o/served /ythe mem/ers.

India has amended the laws to /ring them in conformitywith the TIP*.

The time limit to do so was provided in $rticle &8, Part


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+orld Intellectual Property 6rganization (+IP6' was esta/lished/y +IP6 Convention in 1&7 to promote the protection ofIntellectual Property throughout the world through cooperationamong states and in colla/oration with other internationalorganizations.

The +IP6 convention provides that ?Intellectual property@ shallinclude rights relating to0 #iterary, artistic and scientific wor%s3 Performances of performing artists, phonograms A

/roadcasts3 Inventions in all fields of human endeavour3 *cientific discoveries3 Industrial designs3 Trademar%s, service mar%s and commercial names and

designations3 Protection against unfair competition3

and all other rights resulting from intellectual activity in the industrial,scientific, literary or artistic fields. B$rticle : (viii'


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Jurisprudential Justication Of

Intellectual Property Rights


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Jurisprudential Justication Of IntellectualProperty Rights

Justication for protection of private property;

the private property resulting hen labour isapplied to nature, is an incentive fordiscovery and orks as a foundation for anordered economic system the la protects private

property!Protection of IP raises complex philosophical

questions like;

◦ Should such IPRs "e more limited than traditional propertyrights#

◦ $hat are philosophical %ustications for IP protection #

All %ustications for IP protection hether "ased oneconomics& or morality; maintain a fundamentaldierence between ideas and tangible

property.


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'heories Of IPR ,olloing theories are proposed to %ustify the

e)clusive rights in ideasNatural Rights Theory

All of the nature is a heritage to "e shared e-ually"y all human "eings!

$ith the associated proposition; that a person hola"our upon resources that are either not ownedor held in common has a natural property rightto the fruits of his eorts and that State has aduty to respect and enforce that natural right

'hese ideas . thoughts originating in the ritings of John /ocke are idely thought to "e especiallyapplicable to the eld of intellectual property !


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'heories Of IPR

'he "asic core argument of/ocke(s property theory is that 0

◦ /a"our is mine and hen I

appropriate o"%ects from thecommon& I join my labour tothem.

If you take o"%ects I havegathered you have also taenmy labour & since I have attachedmy la"our to those o"%ects!


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'heories Of IPR

'he ra material is deemed to "e held incommon and the labour contributes tothe value of nished products

(/a"our theory of property (

holds that a person!s productive woris the basis for a property claim.

/ocke(s theory of property provides astrong support for most forms of IP!


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'heories Of IPR

According to this vie& IP permits to reward the creatorfor his wor in order to

encourage him in hisinnovative wor & he ill "emore inspired to produce and

more illing to make his orkavaila"le to pu"lic!


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'heories Of IPR

'his emphasi1es a labour criterion of property,here"y individuals may claim property in allgoods they appropriate from the state of naturethrough the ork of their hands

The labour theory has a seam with regard tointellectual property .

'hus natural theory of rights %usties IPRs that

every man has a natural right over the results ofhis la"our!

*!g! copyright las 2 in the conte)t of 3oral Rightsof author4


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'heories Of IPR

conomic incentive Theory According to thistheory IP protection is necessary to encourageinvestors& authors& and artists to invest in the

process of creation.

5ecause of its intangi"le nature& though IP poses&hat economists refer to as a !public goods!pro"lem;

the application of intellectual property rights may "eseen to o6er a solution to the !public goods !pro"lem


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'heories Of IPR

'he e)istence of IPRs encourages; the earnestof inventors to pursue their creative e6orts!

If earnest can obtain the right to preventothers from copying his inventions, then

he stands a much better chance to reap a prot.

7ence he ill "e much more inclined tomae the initial investment in researchand development

"roperty rights are conferred onintangibles to encourage production ofinformation through economic reward.


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'heories Of IPR

!onsideration Theory According to this theory I"#s provideconsideration to creator, author, artist.

A person ho creates a ork or has a good

idea hich he develops has a right 8 based partly on morality and partly on conceptof reward $ to control the use ande)ploitation of it& and he should "e a"le to

prevent others from taking unfair advantagefrom his e6orts!

%hy should others be able to savethemselves all the time and eorts

required to create or invest in the thing &


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'heories Of IPR

On this "asis law should provideremedies against those whoappropriate the ideas of others!

Person devoting his time and e6ort insuch creation has right to claim thething as his own and also has a

right to obtain some reward for allhis ork


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'heories Of IPR

"nfair !ompetition Theory #◦ $hen a 9rd Party infringes the rights of IP

oner& it constitutes an act of unfair

competition and falls under thegeneral body of tort law.

development of ip system and jurisprudential justification of iprs.pptx

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